Citation Nr: 0826883
Decision Date: 08/08/08 Archive Date: 08/18/08
DOCKET NO. 96-36 952A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for bilateral nuclear
sclerosing cataracts and posterior subcapsular cataracts as a
result of exposure to ionizing radiation.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David Ganz, Associate Counsel
INTRODUCTION
The veteran had active service from October 1941 to February
1947 and June 1950 to June 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1996 rating decision by the
Department of Veterans Affairs (VA) Atlanta, Georgia,
Regional Office (RO). The veteran testified at a Board
hearing at the RO before a Veteran's Law Judge in September
2000. A transcript of the hearing is of record.
A motion to advance this case on the Board's docket was
granted under the authority of 38 U.S.C.A. § 7102(a) (West
2002) and 38 C.F.R. § 20.900(c) (2007).
The Board remanded the claim to the RO for further
development in November 2000, December 2005, and July 2006.
In December 2006 the Board denied entitlement to service
connection for bilateral nuclear sclerosing cataracts and
posterior subcapsular cataracts. The veteran appealed the
Board's decision to the United States Court of Appeals for
Veterans Claims (Court) which, in a March 27, 2008 Order,
granted the parties' Joint Motion for remand, vacating the
Board's December 2006 decision and remanding the case for
compliance with the terms of the Joint Motion.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In the March 2008 Joint Motion for remand the parties agreed
that the Board erred by neglecting to ensure that the veteran
was provided with a VA examination or opinion to ascertain
whether his bilateral cataracts may have had their onset in
service. Specifically, the parties agreed that the record
contains an indication that the veteran's cataracts may be
related to service inasmuch as his service medical records
(SMRs) appear to include a notation of high intraocular
pressure, particularly a September 1967 re-enlistment
examination which notes that the veteran's bilateral
intraocular tension was 20 and a May 1978 medical record
indicating that the veteran was found to have arcus senilis.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate all available
recent VA and private medical and
optometry records concerning treatment for
bilateral nuclear sclerosing cataracts and
posterior subcapsular cataracts received
by the veteran not already associated with
the claim file.
2. Following the completion of the above,
schedule the veteran for a VA examination
to determine whether it is at least as
likely as not that the veteran's bilateral
nuclear sclerosing cataracts and posterior
subcapsular cataracts disability had their
onset in, or are otherwise related to,
service. A complete rationale must be
provided for any opinion expressed.
The claims folder, including a copy of
this Remand and the Court's Joint Motion
and Order, must be made available to the
examiner for review in conjunction with
the examination. Specifically, the
examiner should note the September 1967
re-enlistment examination, which notes
that the veteran's bilateral intraocular
tension was 20, and the May 1978 medical
record indicating that the veteran was
found to have arcus senilis.
3. Thereafter, if necessary, any
additional development deemed appropriate
should be accomplished. The claim should
then be readjudicated. If the claim
remains denied, the RO should issue a
supplemental statement of the case (SSOC)
containing notice of all relevant actions
taken on the claim, to include a summary of
the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal, and allow an
appropriate period of time for response.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).